Posted on September 25, 2010 by Federal Disability Retirement Attorney

It is always important, in contemplating a Federal Disability Retirement application either under FERS or CSRS, to annotate the record where possible. Remember that the Merit Systems Protection Board has previously found that “an appellant’s application for disability retirement in the face of an impending removal for misconduct may cast doubt upon the veracity of his application.” Henderson v. OPM , 109 MSPR 529 (2008).

As such, in preparing a Federal Disability Retirement application, a successful outcome may depend upon a “war of memorandums” between the applicant and the Agency. If the Agency is attempting to remove a Federal or Postal employee based upon “performance” or “conduct” issues, without regard to any medical evidence submitted to the agency, and thereby attempting to characterize the absences, the lack of productivity, warnings and suspensions as mere intransigence and insubordination, then it is important to annotate the record and memorialize the contacts, the submissions, etc., by writing confirming emails, letters, memorandums, etc., where the agency was informed about the medical conditions, which medical documents were submitted, to whom they were submitted, and even the content (perhaps in summary form) of what the doctor has stated. The only way to remove a shadow of a doubt is by allowing the sunlight in (sorry for the trite analogy/metaphor).

Posted on September 19, 2009 by Federal Disability Retirement Attorney

While a compromise position on certain issues in Federal Disability Retirement for FERS & CSRS may be the best that one may hope for, obviously, clarity over question is the better course to have. Thus, for instance, in a removal action, where a Federal or Postal employee is being removed for his or her “excessive absences,” it is best to have the proposed removal and the decision of removal to reference one or more medical conditions, or at least some acknowledgment by the Agency, that would explicate — implicitly or otherwise — that the underlying basis for the “excessive absences” were as a result of the medical condition. There are cases which clearly state that where excessive absences are referenced by medical conditions, the Bruner Presumption would apply in a Federal Disability Retirement case.

Now, in those cases where the removal action merely removes a Federal or Postal employee for “excessive absences”, there are other methods which may win over an Administrative Judge to apply the Bruner Presumption. Such “other methods” may include emails or correspondence, at or near the time of the removal action, which appears to put the Agency on notice about specific medical conditions, including attachments of doctor’s reports, medical notations, etc. Such concurrent documentation can convince an Administrative Judge that, indeed, the question as to whether the “excessive absences” were as a result of a medical condition, and whether the Agency was aware of such an underlying basis, is clarified by documents which provide a proper context within the reasonable time-frame of the issuance of the proposal to remove and the decision to remove. It is always better, of course, to have clarity over a question, but sometimes the question can be clarified with additional and concurrent documentation.

Seven False Myths about OPM Disability Retirement

1) I have to be totally disabled to get Postal or Federal disability retirement.
False: You are eligible for disability retirement so long as you are unable to perform one or more of the essential elements of your job. Thus, it is a much lower standard of disability.

2) My injury or illness has to be job-related.
False: You can get disability even if your condition is not work related. If your medical condition impacts your ability to perform any of the core elements of your job, you are eligible, regardless of how or where your condition occurred.

3) I have to quit my federal job first to get disability.
False: In most cases, you can apply while continuing to work at your present job, to the extent you are able.

4) I can't get disability if I suffer from a mental or nervous condition.
False: If your condition affects your job performance, you can still qualify. Psychiatric conditions are treated no differently from physical conditions.

5) Disability retirement is approved by DOL Workers Comp.
False: It's the Office of Personnel Management (OPM) the federal agency that administers and approves disability for employees at the US Postal Service or other federal agencies.

6) I can wait for OPM disability retirement for many years after separation.
False: You only have one year from the date of separation from service - otherwise, you lose your right forever.

7) If I get disability retirement, I won't be able to apply for Scheduled Award (SA).
False: You can get a Scheduled Award under the rules of OWCP even after you get approved for OPM disability retirement.